Original Notice.

     Preproposal statement of inquiry was filed as WSR 06/02/2009 [09-12-109].

     Title of Rule and Other Identifying Information: The attorney general proposed amending WAC 44-10-010 Definitions, 44-10-020 Designation of manufacturer contract, 44-10-031 Effect of request for arbitration filing, 44-10-040 Attorney general screening of arbitration requests, 44-10-050 Assignment to board, 44-10-060 Powers and duties of arbitration special master, 44-10-070 Manufacturer's statement, 44-10-080 Manufacturer's option to request a viewing of motor vehicle, 44-10-090 Arbitration fee, 44-10-100 Subpoenas, 44-10-110 Scheduling of arbitration hearings, 44-10-120 Withdrawal, 44-10-150 Settlement of dispute, 44-10-170 Powers and duties of arbitrators, 44-10-180 The arbitration hearing, 44-10-200 The arbitration decision, 44-10-221 Resale documents -- Attorney general procedures, 44-10-222 Manufacturer duties upon receipt of a returned vehicle, 44-10-300 Imposition of fine for manufacturer noncompliance with an arbitration decision, and 44-10-310 Request for review of imposition of fine.

     Hearing Location(s): Office of the Attorney General, 800 Fifth Avenue, Suite 2000, Seattle, WA 98104, attendance through webinar connection by request to lemon@atg.wa.gov Subject: Rulemaking Webinar Request, on November 6, 2009, at 10:00 a.m.

     Date of Intended Adoption: December 11, 2009.

     Submit Written Comments to: Paul N. Corning, Lemon Law Administrator, Office of the Attorney General, 800 Fifth Avenue, Suite 2000, Seattle, WA 98104, e-mail lemon@atg.wa.gov Subject: "Rule Making Comments", fax (206) 464-6451 ATTN: Paul N. Corning, by 5:00 p.m., November 2, 2009.

     Assistance for Persons with Disabilities: Contact Paul N. Corning by November 2, 2009, TTY (800) 833-6384 WA Relay Service or (206) 464-6372.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: WAC 44-10-010, adding definition of "manufacturer dispute program" for clarification of existing rules, WAC 44-10-020, adding "e-mail" to designated contact information provided by a manufacturer, WAC 44-10-031, updating a citation and clarify effect of filing a claim, WAC 44-10-040, updating to reflect new statutory procedures regarding review and acceptance or rejection of consumer requests for arbitration, WAC 44-10-050, updating to reflect new statutory procedures regarding assignment of requests for arbitration to the new motor vehicle arbitration board, WAC 44-10-060 (1)-(3), updating and adding clarifications to reflect new statutory procedures regarding requests for special master arbitrator hearings, WAC 44-10-070 and 44-10-080, editorial clarifications without change to effect, WAC 44-10-090, updating to reflect statutory change ending fee collection from out of state consumers, WAC 44-10-100 (1) and (3), updating to reflect statutory changes regarding board duties, allowing use of e-mail, WAC 44-10-110, updating to reflect statutory change allowing use of e-mail, WAC 44-10-120, editorial clarification without change to effect, WAC 44-10-150, update reflecting statutory change regarding board duties, WAC 44-10-170, editorial clarification without change to effect, WAC 44-10-180, clarification without change to effect, WAC 44-10-200 (1), (1)(a)(iii) and (d), (2), (3)(a), (3)(a)(ii), (c), (e), (f), (g), and (6), editorial clarifications without change to effect, updating to reflect new statutory procedures regarding issuance of arbitration decisions, allowing use of e-mail, motor home manufacturer distribution of liability, and manufacturer liability, WAC 44-10-221, editorial clarification without change to effect regarding resale documents for vehicles reacquired under chapter 19.118 RCW through manufacturer dispute programs, WAC 44-10-222, clarification without change to effect, establishing directions relating to a new statutory requirement for manufacturers to obtain title to certain manufacturer reacquired new motor vehicles, and alternative placement location of a disclosure windshield display, WAC 44-10-300 and 44-10-310, updating reflecting statutory change allowing use of e-mail.

     Statutory Authority for Adoption: RCW 19.118.080(2), 19.118.061.

     Statute Being Implemented: Chapter 19.118 RCW.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Attorney General Rob McKenna, governmental.

     Name of Agency Personnel Responsible for Drafting and Implementation: Paul N. Corning, Seattle, Washington, (206) 464-6372; and Enforcement: Doug Walsh, Sr., AAG, Seattle, Washington, (206) 464-6388.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The agency expects these rule modifications to have no negative small business impact. The proposed modifications to existing rules do not impose any new or additional costs on any business or industry beyond those associated with minimum compliance with statutory obligations pursuant to chapter 19.118 RCW.

     The proposed changes to chapter 44-10 WAC:

•	Reflect enacted statutory changes to chapter 19.118 RCW.
•	Do not apply to small businesses.
•	Will not impose any additional costs or impose more than minor costs on businesses in an industry.
•	Are intended to increase clarity of existing rules without change to effect.
•	Will increase clarity and internal agency procedural efficiencies.

     For a copy of the complete economic compliance analysis, please contact Paul N. Corning, Lemon Law Administrator, 800 Fifth Avenue, Suite 2000, Seattle, WA 98104, call (206) 464-6372, e-mail lemon@atg.wa.gov Subject Line: "Rule Making - CR 102 SBEI."

     A cost-benefit analysis is not required under RCW 34.05.328. Pursuant to RCW 34.05.328 (5)(a)(1) [(i)], this agency is not an agency mandated to comply with RCW 34.05.328.

     Pursuant to RCW 34.05.328 (5)(b)(ii), these proposed rule changes in whole or part relate only to internal governmental operation: WAC 44-10-040, 44-10-050, 44-10-060, 44-10-100(1), 44-10-170, 44-10-200 (1), (1)(a)(iii), (2), (e), and (f), and 44-10-221.

     Pursuant to RCW 34.05.328 (5)(b)(iv), these proposed rule changes in whole or part clarify language of a rule without changing its effect: WAC 44-10-010, 44-10-031, 44-10-070, 44-10-080, 44-10-120, 44-10-170, 44-10-180, 44-10-200 (1)(a)(iii), (3)(a), (3)(a)(ii), (c), (e), (f), and (g), 44-10-221, and 44-10-222.

     Pursuant to RCW 34.05.328 (5)(b)(iii) and (v), these proposed rule changes in whole or part adopt without material change Washington state statutes and/or have content that is explicitly and specifically dictated by statute: WAC 44-10-020, 44-10-031, 44-10-040, 44-10-050, 44-10-070, 44-10-080, 44-10-090, 44-10-100 (1) and (3), 44-10-110, 44-10-200 (1), (1)(a)(iii) and (d), (2), (3)(a), (3)(a)(ii), (c), (e), (g), and (6), 44-10-222, 44-10-300, and 44-10-310.

August 27, 2009

Rob McKenna

Attorney General

OTS-2681.1

AMENDATORY SECTION(Amending WSR 02-12-093, filed 6/4/02, effective 7/5/02)

WAC 44-10-010   Definitions.   Terms, when used in this chapter, shall have the same meaning as terms used in chapter 19.118 RCW. The following definitions shall supplement or aid in the interpretation of the definitions set forth in chapter 19.118 RCW.

     "Arbitration special master" means the individual or group of individuals selected by the board to hear and decide special issues timely brought before the board.

     "Attorney general" or "attorney general's office" means the person duly elected to serve as attorney general of the state of Washington and delegates authorized to act on his or her behalf.

     "Board" or "arbitration board" means the new motor vehicle arbitration board established by the attorney general pursuant to RCW 19.118.080.

     "Intervening transferor" means any person or entity which receives, buys or otherwise transfers the returned new motor vehicle prior to the first retail transfer, sale or lease subsequent to being repurchased or replaced by the manufacturer.

     "Lemon Law administration" means the section within the attorney general's office, consumer protection division, designated by the attorney general to be responsible for the implementation of chapter 19.118 RCW and related rules.

     "Lemon Law resale documents" refers to the following:

     (((1))) (a) "Lemon Law resale windshield display" means a document created and provided by the attorney general which identifies that: (((a))) (i) The vehicle was reacquired by the manufacturer after a determination, settlement or adjudication of a dispute; (((b))) (ii) the vehicle has one or more nonconformities or serious safety defects, or was out-of-service thirty or more days due to diagnosis or repair of one or more nonconformities; and (((c))) (iii) the defects or conditions causing the vehicle to be reacquired by the manufacturer.

     (((2))) (b) "Lemon Law resale disclosure": Means a document created and provided by the attorney general which identifies that: (((a))) (i) The vehicle was reacquired by the manufacturer after a settlement, determination or adjudication of a dispute; (((b))) (ii) the vehicle has one or more nonconformities or serious safety defects, or was out-of-service thirty or more days due to diagnosis or repair of one or more nonconformities; and (((c))) (iii) the defects or conditions causing the vehicle to be reacquired by the manufacturer. The document will provide space for the manufacturer to indicate if each nonconformity or serious safety defect has been corrected and is warranted by the manufacturer.

     (((3))) (c) "Notice of out-of-state disposition of a reacquired vehicle" refers to a document created and provided by the Lemon Law administration which requires the manufacturer, agent or dealer to identify the destination state and the dealer, auction, other person or entity to whom the manufacturer sells or otherwise transfers the reacquired vehicle when the vehicle is taken to another state for any disposition, including: Resale, transfer or destruction.

     "Manufacturer dispute program" means a program offered by a manufacturer to owners or lessees of vehicles covered by or previously covered by the manufacturer's warranty to resolve complaints or claims: (a) Established in substantial compliance with the applicable provision of Title 16, Code of Federal Regulations Part 703; (b) where the basis of the program's standards for decision making are substantially equivalent to chapter 19.118 RCW; (c) where the basis of the program's standards for decision making are identified as some or all of the provisions of chapter 19.118 RCW; or (d) references the "Lemon Law" in a manner suggesting or inferring that chapter 19.118 RCW is the program's basis for the decision making, determining remedies or has been approved by the attorney general.

     "Person" includes every natural person, firm, partnership, corporation, association, or organization.

     "Settlement" means ((the resolution of a dispute, under chapter 19.118 RCW,)) an agreement between ((the)) a consumer and a manufacturer ((after the new motor vehicle arbitration board has accepted the consumer's request for arbitration and which results in the manufacturer reacquiring the new motor vehicle directly or indirectly through an agent or a motor vehicle dealer. Settlement includes a consumer's acceptance of a decision or award for repurchase or replacement of a vehicle issued by a manufacturer sponsored dispute resolution program where the basis of the program's standards decision making are specifically related to, or identified as, some or all of the provisions of chapter 19.118 RCW and which)) to resolve a claim under chapter 19.118 RCW after a request for arbitration has been assigned to the arbitration board and where the agreement results in the manufacturer reacquiring ((the)) a new motor vehicle directly or indirectly, through an agent or a motor vehicle dealer.

     "Similar law of another state" refers to the law of another state which creates remedies for a manufacturer's failure to conform a vehicle to its warranty and under which the vehicle was reacquired by the manufacturer.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-010, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.808(2), 19.118.061, and 1998 c 298 § 6. 00-08-068, § 44-10-010, filed 4/3/00, effective 5/4/00. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-010, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 and 19.118.090. 92-11-037, § 44-10-010, filed 5/18/92, effective 6/18/92. Statutory Authority: RCW 19.118.080 (2) and (7). 88-01-093 (Order 87-4), § 44-10-010, filed 12/22/87.]

     (2) Where a manufacturer's production or distribution system is accomplished through more than one division or region, the manufacturer may designate an individual for a division or region for the purpose of receiving notices related to the arbitration program, service of subpoenas, and other correspondence from the attorney general related to the manufacturer's duties and responsibilities set forth in chapter 19.118 RCW.

     (3) The manufacturer is responsible for providing written notice to the attorney general of its replacement of the designated individual or changes to the related address and telephone number.

     (4) If no individual is designated or an insufficient address is provided all notices shall be sent to the corporate headquarters of the manufacturer.

[Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-020, filed 1/24/96, effective 2/24/96.]

     (a) Is received by the Office of the Attorney General within thirty months from the date of original delivery of the new motor vehicle to a consumer at retail; and

     (b) Identifies the consumer and the new motor vehicle which is the subject of the requested arbitration.

     (2) The thirty month manufacturer mandatory arbitration participation period is extended by the number of days during which a consumer's request for arbitration is under review by the attorney general.

     (3) The thirty month manufacturer mandatory arbitration participation period is extended by the number of days during the period after a consumer's request for arbitration accepted by the Lemon Law administration for assignment to the arbitration board, through the date when:

     (a) The attorney general or the board is notified by the consumer that the request for arbitration is withdrawn;

     (b) The attorney general or the board is notified by the consumer that the dispute has been resolved;

     (c) The consumer rejects the arbitration decision; or

     (d) Compliance occurs with an arbitration award that was accepted by the consumer.

     (4) If the attorney general finds that a request is not complete, the thirty month ((limitation)) manufacturer mandatory arbitration participation period will resume ((running)) three business days after the date the attorney general mails notice of incompleteness to the consumer or the day following delivery of e-mail notice if requested by the consumer.

[Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-031, filed 1/24/96, effective 2/24/96.]

     (3) A consumer request that is based on a problem which does not manifest itself, is intermittent or unconfirmed shall not preclude an attorney general determination of the appearance of jurisdiction for purposes of initial screening. However, this section shall not preclude a party from raising jurisdictional issues at the arbitration hearing or subsequent court proceedings.)) (1) The attorney general will review a request for arbitration and supporting documentation for a statement of claim and appearance of jurisdiction within the authority established pursuant to chapter 19.118 RCW, timeliness, and completeness of the form and accompanying documents.

     (2) The attorney general will reject a request for arbitration that is incomplete, untimely, or if there is reason to believe that the claim is frivolous, fraudulent, filed in bad faith, res judicata or beyond the authority of chapter 19.118 RCW.

     A request for arbitration based on an alleged defect that does not manifest when inspected or tested, is intermittent or unconfirmed shall not preclude an attorney general determination of the appearance of jurisdiction and a statement of claim for purposes of initial screening.

     (3) Nothing in this section precludes a party from raising jurisdictional or factual issues at the arbitration hearing or subsequent court proceedings.

     (4) A request for arbitration will be considered complete when the information required by the request form is provided in full with copies of specified documents or if the consumer provides a reasonable explanation for the absence of any supporting documentation.

     (5) If a request for arbitration is rejected, the attorney general will notify the consumer of the reason for the rejection and any procedures or information required to complete the request.

[Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-040, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-040, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-04-081 (Order 88-2), § 44-10-040, filed 2/3/88.]

     (4) Upon acceptance of a request, the board shall immediately notify the Lemon Law administration. A notice of acceptance for arbitration will be sent to the consumer and manufacturer by certified mail/return receipt requested and shall inform the parties that a hearing shall be held within forty-five calendar days. The parties shall be sent formal notice of the actual hearing date by certified mail/return receipt requested, at least ten calendar days before the hearing. The designated manufacturer contact shall be sent a copy of the consumer's request and a manufacturer's statement form with the notice of acceptance.)) (1) Review by the attorney general, a request for arbitration appearing to be timely, complete and to have met the jurisdictional requirements of chapter 19.118 RCW will be assigned to the board.

     (2) A notice that the request has been assigned to the board to be scheduled for an arbitration hearing will be sent to the consumer and manufacturer by certified mail or e-mail if requested by a party. The designated manufacturer contact will be sent a copy of the consumer's request for arbitration and a manufacturer's statement form with the notice of assignment.

     (3) Upon receipt of a request for arbitration from the attorney general, the board will record the date it receives the assignment in the request for arbitration record and immediately notify the Lemon Law administration.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-050, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-050, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-050, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-04-081 (Order 88-2), § 44-10-050, filed 2/3/88; 88-01-093 (Order 87-4), § 44-10-050, filed 12/22/87.]

     (2) Issues which may be decided by the program manager or arbitration special master include but are not limited to: Motions to quash or limit the scope of subpoenas, disputes related to requests to view the vehicle, disputes relating to an arbitration award including specification of the award amounts which could not have been or were not resolved at the arbitration hearing or matters necessary for compliance with the arbitration decision such as: Time and place for compliance, condition of the vehicle to be returned, clarification or recalculation of refund amounts or a determination that an offered vehicle is reasonably equivalent to the vehicle being replaced. The program manager or the arbitration special master may conduct telephonic conferences with a party or parties, as appropriate, and may request additional written information in order to rule on issues.

     (3) ((An)) The program manager or the arbitration special master shall not extend the forty day period during which the manufacturer must comply with the arbitration decision except where the program manager or arbitration special master makes a finding that:

     (a) The ((dispute)) issues identified in the special master request could not have been brought ((to the board)) allowing sufficient time to conclude compliance within the forty day compliance period; and

     (b) If the manufacturer made the request for a special master, the manufacturer's position in the dispute is supported by the special master's decision.

     (4) Arbitration special masters shall sign a written oath prior to their appointment as arbitration special master attesting to their impartiality. There shall be no ex parte communication initiated by a party with an arbitration special master.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-060, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-060, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 and 19.118.090. 92-11-037, § 44-10-060, filed 5/18/92, effective 6/18/92. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-060, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-04-081 (Order 88-2), § 44-10-060, filed 2/3/88.]

     (a) A statement of any affirmative defenses, and any legal or factual issues to be raised at the hearing. Any issues or affirmative defenses not raised in a timely manufacturer's statement or other documents ((filed)) not provided to the consumer and submitted to the board prior to the hearing may be excluded or limited by the arbitrator at the hearing; except as provided in WAC 44-10-080(6).

     (b) The name, title, and business address of any person(s) the manufacturer plans to call as witnesses or from whom affidavits or written testimony will be presented;

     (c) A statement identifying the year, make, model, options, color and any other significant information pertaining to the vehicle or vehicles it intends to offer as a reasonably equivalent replacement vehicle if the consumer prevails and requests replacement. If the manufacturer believes in good faith that replacement is impossible, or unreasonable, or cannot be provided timely pursuant to compliance requirements the manufacturer must raise such issue in its statement.

     (2) The manufacturer must exercise its option to request a viewing of the consumer's motor vehicle by including a request to view the vehicle in the manufacturer's statement.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-070, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-070, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 (2) and (7). 88-04-081 (Order 88-2), § 44-10-070, filed 2/3/88.]

     (2) The manufacturer and the consumer shall ((attempt to)) arrange a mutually agreeable time and location for such viewing. If after reasonable good faith attempts to arrange a viewing, a mutually agreeable time and location is not established, the manufacturer may request the Lemon Law administration program manager to set a time and location for viewing.

     (3) Upon receipt of a request to set a viewing, the Lemon Law administration program manager shall establish a time and location for viewing that is reasonably convenient for the parties. The location may be the consumer's residence if other locations are not reasonably convenient for the parties((,)). The consumer must be present during the viewing, unless the consumer expressly waives in writing the right to be present.

     (4) The viewing is not meant to be another attempt to repair the vehicle and no repair procedures shall be conducted.

     (5) The manufacturer may perform limited nonrepair diagnostic examinations and inspection procedures, such as test driving the vehicle or attaching a testing device to the vehicle. The results of any diagnostic procedures or data gathered as a result of such procedures shall be supplied to the consumer as soon as it is available.

     (6) If the viewing of the vehicle reveals any affirmative defenses or legal or factual issues not previously raised in the manufacturer's statement or consumer's request for arbitration, either party may file amendments with the Lemon Law administration within three business days of the viewing, or, no later than three business days prior to the hearing date, whichever is earlier.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-080, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-080, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 (2) and (7). 88-04-081 (Order 88-2), § 44-10-080, filed 2/3/88.]

[Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-090, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 and 19.118.090. 90-19-024, § 44-10-090, filed 9/11/90, effective 10/12/90. Statutory Authority: RCW 19.118.080(7). 87-23-030 (Order 87-2), § 44-10-090, filed 11/13/87.]

     (2) A subpoena issued by the attorney general shall identify the party causing the issuance of the subpoena, designate that the subpoena is issued by the attorney general pursuant to RCW 19.118.080, state the purpose of the proceeding, and command the person to whom it is directed to produce at the time and place set in the subpoena the designated documents or records under his or her control.

     (3) Service of the subpoena may be made be certified mail, return receipt requested, e-mail if requested by a party or by overnight express delivery.

     (4) A person to whom a subpoena is directed may submit a written request to suspend or limit the terms of the subpoena to the Lemon Law administration within five business days of receipt of the subpoena and shall notify the party who requested the subpoena, of the request to suspend or limit it. The request must be accompanied by a short statement setting forth the basis for the request. The Lemon Law administration program manager may suspend or modify the subpoena or shall assign the request to be heard at the arbitration hearing.

     (5) Where the Lemon Law administration program manager upholds or modifies the subpoena, the responding person or party shall comply with the date set in the subpoena or within five business days, whichever is greater.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-100, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-100, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-100, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-01-093 (Order 87-4), § 44-10-100, filed 12/22/87.]

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-110, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-110, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-110, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-04-081 (Order 88-2), § 44-10-110, filed 2/3/88.]

     A first withdrawal shall be granted without prejudice((, although)). Upon notice to the Lemon Law administration of withdrawal, the thirty month period ((in which the consumer must submit a request for)) manufacturer mandatory arbitration participation period shall resume running. A consumer who has withdrawn may resubmit the claim for arbitration. However, if the consumer withdraws the second request, the withdrawal shall be considered a withdrawal with prejudice and the consumer shall not be allowed to resubmit the claim for arbitration.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-120, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-120, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080. 89-06-026 (Order 89-2), § 44-10-120, filed 2/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-01-093 (Order 87-4), § 44-10-120, filed 12/22/87.]

     (2) Notice of settlement or agreement to resolve the dispute shall be treated procedurally as if the consumer had withdrawn from the arbitration process, as set forth in WAC 44-10-120.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-150, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-150, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-150, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-01-093 (Order 87-4), § 44-10-150, filed 12/22/87.]

     (a) To consider any and all evidence offered by the parties which the arbitrator deems necessary to an understanding and determination of the dispute;

     (b) To regulate the course of the hearings and the conduct of the parties, their representatives and witnesses;

     (c) To schedule vehicle inspection by the technical experts, if deemed necessary, at such time and place as the arbitrator determines;

     (d) To continue the arbitration hearing to a subsequent date if, at the initial hearing, the arbitrator determines that additional information is necessary in order to render a fair and accurate decision. Such continuance shall be held within ten calendar days of the initial hearing;

     (e) To impose sanctions for failure of a party to comply with a subpoena pursuant to RCW 19.118.080 (2)(b);

     (f) To calculate and order the joint liability for compliance obligations of motor home manufacturers, when applicable, as part of ((an)) arbitration decisions when ordering repurchase or replacement of a new motor vehicle.

     (2) The board is responsible for the assignment of arbitrators to arbitration hearings. The selection and assignment of arbitrators is not subject to the approval of either party.

     (3) Arbitrators must not have a personal interest in the outcome of any hearing, nor be acquainted with any of the participants except as such acquaintance may occur in the hearing process, nor hold any prejudice toward any party. Arbitrators shall not be directly involved in the manufacture, distribution, sale, or warranty service of any motor vehicle. Arbitrators shall maintain their impartiality throughout the course of the arbitration proceedings.

     (a) An arbitrator shall sign a written oath prior to the commencement of each arbitration hearing to which he or she has been assigned, attesting to his or her impartiality in that case.

     (b) There shall be no direct communication between the parties and the arbitrators other than at the arbitration hearing. Any other oral or written communications between the parties and the arbitrators shall be channeled through the board. Any prohibited contact shall be reported by the arbitrators to the board and noted in the case record.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-170, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.808(2), 19.118.061, and 1998 c 298 § 6. 00-08-068, § 44-10-170, filed 4/3/00, effective 5/4/00. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-170, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-170, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-01-093 (Order 87-4), § 44-10-170, filed 12/22/87.]

     (2) Arbitrators may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent people in the conduct of their affairs. They shall give effect to the rules of privilege recognized by law. They may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.

     (3) The consumer shall present his or her evidence and witnesses, then the manufacturer shall present its evidence and witnesses.

     (4) Each party may question the other after each presentation, and may question each witness after testimony. The arbitrator may question any party or witness at any time.

     (5) The arbitrator shall ensure that a tape recording record of the hearing is maintained.

     (6) The arbitrator shall administer an oath or affirmation to each individual who testifies.

     (7) The hearing procedure contemplates that both parties will be present. However, either party may offer written testimony only((, as long as)) if the board and ((the other party are informed of such and)) other parties are in receipt of that evidence prior to the day of the hearing.

     (8) A party may request presentation of its case by telephone.

[Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-180, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-180, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-04-081 (Order 88-2), § 44-10-180, filed 2/3/88.]

     (a) All decisions shall be written, in a form to be provided by the Lemon Law administration, dated and signed by the arbitrator, and sent by certified mail to the parties;

     (b) The date on which the board provides the arbitration decision to the Lemon Law administration shall determine compliance with the sixty day requirement to issue an arbitration decision;

     (c) The written decision shall contain findings of fact and conclusions of law as to whether the motor vehicle meets the statutory standards for refund or replacement;

     (i) If the consumer prevails and has elected repurchase of the vehicle, the decision shall include the statutory calculations used to determine the monetary award;

     (ii) If the consumer prevails and has elected replacement of the vehicle, the decision shall identify or describe a reasonably equivalent replacement vehicle and any refundable incidental costs;

     (iii) If the consumer prevails and the manufacturer ((is)) and the consumer have been represented by counsel, the decision shall include a description of the awarded reasonable costs and attorneys' fees incurred by the consumer in connection with board proceedings.

     Reasonable costs and attorneys' fees shall be determined by the arbitrator based on an affidavit of costs and fees prepared by the consumer's attorney and submitted no later than the conclusion of the arbitration hearing. The affidavit may be amended for post-hearing costs and fees. The amended affidavit of costs and fees must be delivered to the manufacturer's designated representative by certified mail or personal service and a copy submitted to the Lemon Law administration by the consumer's attorney within thirty days of the consumer's acceptance of the decision but in no case after a manufacturer's compliance with a decision;

     (d) Upon receipt of the board's decision, the Lemon Law administration will distribute it to the parties by certified mail or e-mail if requested by a party.

     (2) Upon request of a party, an arbitrator shall make factual findings and modify the offset total where the wear and tear on those portions of the motor home designated, used, or maintained primarily as a mobile dwelling, office, or commercial space is significantly greater or significantly less than that which could be reasonably expected based on the mileage attributable to the consumer's use of the motor home in an arbitration decision awarding repurchase or replacement of a new motor vehicle ((originally purchased or leased at retail after June 30, 1998)). An arbitrator will consider the actual amount of time that portions of the motor home were in use as dwelling, office or commercial space. The arbitrator shall not consider wear and tear resulting from:

     (a) Defects in materials or workmanship in the manufacture of the motor home including the dwelling, office or commercial space;

     (b) Damage due to removal of equipment pursuant to RCW 19.118.095 (1)(a); or

     (c) Repairs.

     The modification to the reasonable offset for use may not result in the addition or reduction of the offset for use calculation by more than one-third. The modification shall be specified as a percentage for reduction or addition to the offset calculation. The modification to the reasonable offset for use shall apply to the offset calculation at the time of repurchase or replacement of the motor home.

     (3)(a) ((If)) A motor home manufacturer is independently liable for compliance with a decision awarding repurchase or replacement of the motor home if the manufacturer:

     (i) Has met or exceeded the reasonable number of attempts to diagnose or repair the vehicle as set forth in RCW 19.118.041 (3)(a) or (b); or

     (ii) Is responsible for sixty or more applicable days out of service by reason of diagnosis or repair as set forth in RCW 19.118.041 (3)(c), the motor home manufacturer is independently liable for compliance with a decision awarding repurchase or replacement of the motor home.

     (b) If a motor home manufacturer has not met the criteria set forth in (a)(i) and (ii) of this subsection, but has contributed to the combined total of sixty or more days out of service by reason of diagnosis or repair as set forth in RCW 19.118.041 (3)(c), the manufacturer is jointly liable with the other liable motor home manufacturers for compliance with a decision awarding repurchase or replacement of the motor home.

     (c) If a motor home manufacturer has met or exceeded the reasonable number of attempts to diagnose or repair the vehicle as set forth in RCW 19.118.041 (3)(a) ((or)), (b), or (c) and the manufacturer, together with one or more other motor home manufacturers, contributed to a combined total of sixty or more days out of service by reason of diagnosis or repair as set forth in RCW 19.118.041 (3)(c), the motor home manufacturer is jointly and severally liable for compliance with a decision awarding repurchase or replacement of the motor home.

     (d) In a decision awarding repurchase or replacement of a motor home, and that allocates compliance liability, an arbitrator will identify the motor home manufacturer's minimum percentage of contribution to compliance with the award. In determining the allocation of liability among jointly liable motor home manufacturers, the arbitrator will consider a motor home manufacturer's contribution to the total number of applicable days out of service as a factor.

     (e) When applicable as set forth in RCW 19.118.090(((5))) (6), the arbitrator must allocate liability for the consumer's costs and attorneys' fees among the liable motor home manufacturers represented by counsel. The arbitrator will specify the liable motor home manufacturer's minimum percentage of contribution to compliance with the award. The motor home manufacturer's minimum percentage of contribution for the consumer's costs and attorneys' fees may be different from the minimum percentage of contribution of the motor home manufacturer's compliance obligation due to other liable motor home manufacturers' lack of representation by counsel.

     (f) An ((arbitrator)) arbitration decision must specify ((in the decision)) that the lack of compliance, late or delayed compliance, or the filing of an appeal by another liable motor home manufacturer will not affect a motor home manufacturer's independent liability for compliance with a decision awarding repurchase or replacement of the motor home.

     (g) ((At the conclusion of the arbitration hearing regarding a motor home purchased or leased after June 30, 1998,)) A motor home manufacturer may present testimony and other evidence regarding the allocation of liability for compliance with arbitration decisions awarding repurchase or replacement of the motor home. If the motor home manufacturers agree amongst themselves to terms for the allocation of liability for compliance obligations, the arbitrator must include the terms in the arbitration decisions awarding repurchase or replacement of the motor home if the terms are consistent with the arbitration decisions, specific, complete and not otherwise contrary to chapter 19.118 RCW.

     (4) Included with the copy of the arbitration decision sent to the consumer shall be a form to be completed by the consumer, indicating acceptance or rejection of the decision and general information to the consumer explaining the consumer's right to appeal the decision to superior court. The consumer must return the form to the Lemon Law administration within sixty calendar days from the date of the consumer's receipt of the decision or the decision will be deemed to have been rejected as of the sixty-first day.

     (5) The consumer shall have one hundred twenty calendar days from the date of the rejection of the decision to file a petition of appeal in superior court. At the time of filing an appeal, the consumer shall deliver by certified mail or by personal service a conformed copy of the petition to the attorney general.

     (6) If the consumer accepts a decision which awards repurchase or replacement, the Lemon Law administration shall send a copy of the form completed by the consumer indicating acceptance to the manufacturer by certified mail ((for the board to)) or e-mail if requested by the manufacturer and shall include a manufacturer's intent form.

     A verification of compliance form shall be sent to the consumer by the Lemon Law administration. The verification of compliance form shall be completed and returned to the Lemon Law administration by the consumer upon the manufacturer's compliance with the decision.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-200, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.808(2), 19.118.061, and 1998 c 298 § 6. 00-08-068, § 44-10-200, filed 4/3/00, effective 5/4/00. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-200, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 and 19.118.090. 90-19-024, § 44-10-200, filed 9/11/90, effective 10/12/90. Statutory Authority: RCW 19.118.061, 19.118.080 and 19.118.090. 89-16-024 (Order 89-4), § 44-10-200, filed 7/24/89, effective 8/24/89. Statutory Authority: RCW 19.118.080 (2) and (7). 88-04-081 (Order 88-2), § 44-10-200, filed 2/3/88.]

     (a) The Lemon Law administration will provide the manufacturer with the "Lemon Law resale documents" necessary to resell or otherwise transfer the vehicle together with instructions regarding compliance with RCW 19.118.061 and applicable rules;

     (b) The Lemon Law administration will provide the manufacturer with the required documents by certified mail at the conclusion of the period pursuant to RCW 19.118.090(9) for a manufacturer to file an appeal or upon notice from the manufacturer of receipt of the vehicle, whichever occurs first.

     (2) When a vehicle is the subject of a "settlement" under chapter 19.118 RCW:

     (a) The Lemon Law administration will provide the manufacturer with the "Lemon Law resale documents" necessary to resell or otherwise transfer the vehicle together with instructions regarding compliance with the RCW 19.118.061 and applicable rules;

     (b) The Lemon Law administration will provide the manufacturer with the required documents by certified mail or express mail upon notice of the settlement by the parties ((or upon receipt from a manufacturer sponsored dispute resolution program of a decision or award, and notice of the consumer's acceptance of the award for repurchase or replacement of a vehicle where the basis of the program's decision-making standards are specifically related to or identified as some or all of the provisions of chapter 19.118 RCW and which will result in the manufacturer reacquiring the new motor vehicle directly, through an agent or a motor vehicle dealer));

     (c) The Lemon Law administration will provide the manufacturer with the required "Lemon Law resale documents" and instructions regarding compliance with this section by certified or express mail upon notice of the consumer's acceptance of a decision or award for repurchase or replacement of the consumer's vehicle from a manufacturer dispute program.

     (3) When a vehicle is the subject of final determination, adjudication or settlement under a "similar law of another state":

     (a) The Lemon Law administration will provide the manufacturer, agent, motor vehicle dealer or other transferor with the resale documents necessary to resell or otherwise transfer the vehicle together with instructions regarding compliance with this section;

     (b) The Lemon Law administration will provide the manufacturer, agent, motor vehicle dealer or other transferor with the resale documents by certified mail upon receiving a written request for Lemon Law resale documents, which includes a description of the defects or conditions causing the vehicle to be reacquired by the manufacturer.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-221, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-221, filed 1/24/96, effective 2/24/96.]

     (1) Notify the Lemon Law administration and the department of licensing upon receipt of the vehicle from the consumer due to a determination, adjudication or settlement pursuant to chapter 19.118 RCW and chapter 44-10 WAC.

     (2) Correct and warrant a serious safety defect and execute the appropriate section of the Lemon Law resale documents identifying corrections made to serious safety defect and nonconformities.

     (3) Within sixty days of receipt of the vehicle submit a title application identifying corrections made to serious safety defect and nonconformities to the department of licensing in this state for title to the motor vehicle.

     (4) Attach the "Lemon law resale windshield display," as provided by the Lemon Law administration, to the lower center of the front windshield or window on the driver's side of the vehicle in a manner so as to be readily visible from the exterior of the vehicle.

     (((3) Correct and warrant a serious safety defect.

     (4) Notify the Lemon Law administration and the department of licensing of correction of a nonconformity or serious safety defect and execute the appropriate section of the Lemon Law resale documents.))

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-222, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-222, filed 1/24/96, effective 2/24/96.]

     (2) A fine against the manufacturer for noncompliance may be imposed according to the following schedule for each day after the forty day calendar period:

DAYS 1 THROUGH 10 . . . . . . . . . . . . $ 300.00 PER DAY

DAYS 11 THROUGH 20 . . . . . . . . . . . . $ 500.00 PER DAY

DAYS 21 THROUGH 30 . . . . . . . . . . . . $ 700.00 PER DAY

DAYS 31 AND ON . . . . . . . . . . . . $1000.00 PER DAY

     The foregoing fines shall accrue until the manufacturer complies or until one hundred thousand dollars has accrued, whichever occurs first.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-300, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-300, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 and 19.118.090(7). 91-02-080, § 44-10-300, filed 12/31/90, effective 1/31/91. Statutory Authority: RCW 19.118.061 and 19.118.080. 89-06-025 (Order 89-1), § 44-10-300, filed 2/24/89.]

     (2) Upon receipt of a request for review of imposition of fine, the Lemon Law administration shall have ten days to conduct a review or request additional information from the parties or other persons regarding manufacturer noncompliance.

     (3) The review shall be limited to determining whether the manufacturer has shown by clear and convincing evidence that any delay or failure of the manufacturer to comply within forty calendar days following the manufacturer's receipt of notice of consumer's acceptance was beyond the manufacturer's control or was acceptable to the consumer as evidenced by a written statement signed by the consumer. No other issues shall be considered in the review.

     (4) The Lemon Law administration shall issue a written review determination which shall be delivered to the manufacturer by certified mail, e-mail if requested by the manufacturer or personal service.

     (5) If it is determined that the manufacturer's noncompliance was beyond the manufacturer's control or was acceptable to the consumer as evidenced by a written statement from the consumer, the imposition of fine shall be rescinded. The imposition of fine shall be affirmed where the manufacturer has failed to show clear and convincing evidence as required by WAC 44-10-310(3). If the imposition of fine is affirmed, the manufacturer shall be liable for a fine according to the schedule specified in WAC 44-10-300(2) including all days during the pendency of review under this section and until compliance with the arbitrator's decision or until one hundred thousand dollars has accrued, whichever comes first.

     (6) If a fine is rescinded under WAC 44-10-310(5) the Lemon Law administration program manager may impose a fine against the manufacturer where the manufacturer fails to comply with the agreement between the manufacturer and the consumer, or when the manufacturer fails to comply immediately after the circumstances no longer exist which made compliance beyond the control of the manufacturer. Notice of such fine shall be by certified mail, e-mail if requested by the manufacturer or ((personnel)) personal service to the manufacturer and shall be imposed according to the schedule in WAC 44-10-300(2), and imposition of such fine is subject to review by the Lemon Law administration upon request of the manufacturer under WAC 44-10-310.

[Statutory Authority: RCW 19.118.080(2), 19.118.061. 02-12-093, § 44-10-310, filed 6/4/02, effective 7/5/02. Statutory Authority: RCW 19.118.080 (2) and (7), 19.118.061 and 1995 c 254 § 4. 96-03-155, § 44-10-310, filed 1/24/96, effective 2/24/96. Statutory Authority: RCW 19.118.080 and 19.118.090(7). 91-02-080, § 44-10-310, filed 12/31/90, effective 1/31/91. Statutory Authority: RCW 19.118.061 and 19.118.080. 89-06-025 (Order 89-1), § 44-10-310, filed 2/24/89.]

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